Constitutional right to racial equality needed

Thursday 25 May 2017

With the First Nations Convention being held this week at
Uluru, a Charles Sturt University (CSU) constitutional expert questions 'cosmetic'
changes that do not change the legal status of Indigenous Australians.

"The term 'Indigenous constitutional recognition' is legally
meaningless. If 'recognition' is to effect
practical changes, it must affect the legal status of the Indigenous people,"
said Dr Bede Harris, a constitutional law expert in the CSU Faculty of Business, Justice and
Behavioural Sciences.

"The Constitution is a document which creates rights and
duties. It would be mere symbolism to recite facts such as that the Indigenous
people are Australia's first inhabitants."

Dr Harris said it is undeniable that Indigenous people have
been subject to discrimination on grounds of race ever since
colonisation.

"Race is a key issue that needs to be addressed. Currently
the 'races' power in the Australian Constitution allows Parliament to legislate
against the interests of Indigenous people.

"Because there is no constitutional protection for racial
equality, Parliament can − and has − over-ridden protections that exist in
the Racial Discrimination Act.

"The most important change required to enhance the status of
Indigenous people is the inclusion in the Constitution of a right not to be
subject to discrimination on grounds of race or ethnic origin.
Conservative opponents have argued this would be divisive, but I think it would
have a unifying effect, as it would protect all Australians."

Dr Harris pointed out that putting new rights in the Constitution
would not change the balance of power between Parliament and the courts, as
constitutional conservatives have alleged.

"The courts already have the power to invalidate laws which
infringe constitutional freedoms, such as freedom of religion," Dr Harris said.

"Including a right to racial equality in the
Constitution would give no new function to the courts. No-one has argued that religious freedom be
removed from the Constitution, so why should the right to racial equality not
be included?"

Dr Harris also highlighted that a right to racial equality should
also allow Parliament to enact laws that benefit racial or ethnic groups to
remedy past injustices.

"This was done when the South African Constitution was
drafted when it sought to address past racial discrimination.

"Australia has signed the Universal Declaration on Human
Rights and the Convention on the Elimination of all forms of Racial
Discrimination. Both prohibit racial discrimination and protect the right to
equality. Why can't we protect that right in our own law?"

Dr Harris is concerned that too much emphasis has been
placed on drafting a proposal that will not encounter opposition.

"This is a recipe for preserving the status quo. We
must not sacrifice principles simply to reach consensus – achieving real change
may require argument and struggle, which we should not shy away from," he said.

"Protecting racial equality is a moral issue, requiring a
moral response rather than a pragmatic one.

"We need vigorous debate. We must challenge the constitutional
conservatives to justify the absence of a right to racial equality in the
Constitution, and the proposition − which their position logically
implies, that Parliament should have the power to enact racist legislation."

Dr Harris posed the following question: "If the
1967 referendum had encountered opposition from conservatives, would
Australians have amended the referendum question so as to mollify them, or
would they have faced them down?"